Dear Editor:
We are the owners of the infamous gazebo in Orangeville. For two and one half years we have been threatened with court and illegally charged twice for not obtaining a building permit. These charges were dropped and filed in District Court. In order to clear up rumors, and address concerns so this issue may be brought to a close we want to share our experience.
In the summer of 2002 we put a gazebo to the side of our home. For six weeks we worked on the gazebo. During this time we had no interaction with the zoning officer or anyone from Orangeville City. After eight weeks we received a letter from Orangeville City requesting we remove two little Aspen trees (planted two years prior) that were too close to a future sidewalk. The zoning officer came to discuss trees and noticed our gazebo for the first time. He informed us the street was our frontage road and the gazebo would need to be moved to meet a 25 foot setback requirement. The address on our city bill had the other street as the frontage road. We were told to get a building permit. Overnight our gazebo became an accessory building, (shed) requiring a 40 foot setback.
We were told to attend a planning and zoning meeting. A representative from the association of governments explained that the purpose for a setback was to prevent a line of sight problem. He advised that the board of adjustments could make a special exception in this situation as it was not a line of sight problem. He informed them that a variance could not be used by anything that was caused by man, but a special exception was a good option. At the planning and zoning meeting we did not receive feedback to questions about accessory buildings, and definitions. We were advised by the consultant from the AOG not to move the gazebo, but wait to hear back from the commission. We did not hear back from the commission.
We were the only city in the state with a 40 foot setback requirement on corner lots because of the accessory building portion of the policy. The average setback is 8 to 25 feet. (Within a few short weeks after we were ordered to move our gazebo 40 feet, our city changed their setback to 25 feet). In Orangeville City’s code book under “Main Dwellings and all other Structures”, the policy that applies already requires only a 25 foot setback on the side lot of the corner. This same ordinance also specifically lists carports as other structures. Recently our planning and zoning administrator insisted a carport was an accessory building requiring a 40 foot setback At the last city council meeting another ordinance was passed making a carport an accessory building only if it is enclosed on three sides. The difference that would not allow us this 25 foot setback was the insistence our gazebo was an accessory building (shed) rather than falling under “All other Structures.” A gazebo, carports and all dwellings and structures already have a 25 foot setback and these two ordinances that have recently been passed are already covered in the code book. The insistence that a gazebo was an accessory building was intended to implement the strictest use of the codes possible. The situations above are examples of how ordinances can be purposely used by a few people to adversely affect citizens. To cover these situations up, policies on top of policies are being adopted.
With four days notice the zoning officer and secretary called telling us to come to the board of adjustments with our property drawn to scale. Without requested information, enough time to draw our property, combined with a conflicting work schedule we were not able to attend. We assumed we would have another opportunity, and hoped to get a definition of an accessory building so we could be adequately prepared to advocate for a special exception as we had been advised.
We received a letter from the board of adjustments informing us that our issue was discussed (without us present) and we were denied a variance (we were told we could not legally ask for). We were given 30 days to move our gazebo or be charged with a Class C Misdemeanor. We were not given the option to appeal (as outlined in city codes) this decision. We were charged for not obtaining a building permit and for an improper setback (Twice). It was evident the intent was to take us to court. We simply allowed this small handful of people to follow their agenda.
One volunteer who has served on the planning and zoning, and the board of adjustments for nearly 30 years has also voted on both boards. Recently the city decided to implement term limits that were in the code book and should have been followed all along. Though there is not a 30 term listed, this volunteer is still on planning and zoning and board of adjustments. We are grateful to have new members on these boards and feel that volunteers who have controlled decisions and have influenced others on these boards should make room for “New Blood”.
Eleven months after the board of appeals denied us a variance and threatened us with court, our attorney informed the city we had not been given a chance to appeal. At 13 months we had an appeal, only to have it continued to the next month due to information we shared about building permit requirements. We appealed to the board that we had illegally been charged with not obtaining a building permit. We were denied a permit we were never required to get. We told the members about the IBC Codes (specifically the IRC) and informed them that anything less than 200 square feet did not require a building permit. David McKay with the Building Codes Council also advised us our gazebo was a decoration and setback requirements were not relevant. Members of the board asked us to bring phone numbers and more information.
The next month we brought requested information but were told we could not have input. We were not allowed to share the requested information with the board. (We believe this information could have prevented litigation). The secretary informed us it was illegal for the board to go against the decision of the zoning administrator, (see The Utah State Code 10-9-703 Powers and Duties).
(1) The board of adjustment shall hear and decide:
(a) Appeals from zoning decisions applying the zoning ordinance;
(b) Special exceptions to the terms of the zoning ordinance.
(c) Variances from the terms zoning ordinance.
(2) The board may make determinations regarding the existence, expansion, or modification of nonconforming uses.
The requirements for a variance were read to us and we did not fit the requirements. (We were asking for a special exception).
Being sent to the board of adjustments to ask for a variance continues to be a big concern for citizens in Orangeville. To go to this board one must fill out an application requesting a variance, (The only duty recognized by the board is listed above as c). In most situations a variance does not apply. A request is always denied as it never did fit the situation or need of the citizen. The zoning administrator sends citizens to the board of adjustments if they want to appeal his decision, yet this is not an option when they get there. It is hoped that newer members on this board will recognize and rectify this dilemma, (Catch 22).
Although not informed of this right by Orangeville City, we were advised we could appeal to district court. Orangeville City policies require an appeal to be filed within 30 days of the decision. After 66 days we received the letter we needed stating the decision so we could file an appeal. Of course, it was too late.
Orangeville City hired attorneys from Salt Lake and took us to district court, alleging we gave up our right to appeal. Recent changes have been made to support Emery County and keep business local. Our city should also hire local representation. (We currently have lawyers from Salt Lake advising our city government on legalities and policies. We have very competent lawyers in our area who have the benefit of living here and understanding the needs of small rural cities).
In October 2003, we informed the city council about International Codes that had been adopted by the state as far back as 2000. The code does not require a building permit for anything less than 200 square feet. (David Mckay, Building Codes Council). The city council had never heard of these codes as previous information we tried to share was not passed on. A previous city councilman laughed and made rude comments while this information was being presented. At this time we had been illegally charged for not obtaining a building permit twice. We have been concerned that our city who has not been in compliance for several years was taking citizens to court for not being in compliance. We felt if our council had correct information they would work with us and listen to us. This was to no avail. The agenda to take us to court was being pushed forward and options for communication were running out. Moving our gazebo under these circumstances would only encourage the mistreatment of others.
On June 14, Orangeville City posted notices that they had recently adopted International Codes. These codes, when adopted by the state, are adopted statewide and the 200 square foot requirement has been in effect as far back as 2000. Orangeville City announced that they were going to adopt these codes in their “Grapevine” newsletter back in April, but continued to charge residents for building permits that were not required by this code. If you have been charged for a permit for anything under 200 square feet in the last four years, you need a refund. (Contact us for letter from Jeff Whitney who is President of Utah Chapter of ICC). If you have heard that these codes are new or they can be adopted at leisure, contact Whitney.
At a recent planning and zoning meeting we shared a letter from Jeff Whitney, President of the International Codes Council. Newer volunteers and city council members have been led to believe that city governments are automatically allowed to be more restrictive than International Codes. Currently only six cities in our state have ever filed for an amendment to the codes. Orangeville is not one of them.
A few months ago, with six days to answer to allegations from attorney’s that had been retained by Orangeville City, we requested the public minutes. We were told they were unavailable and no one could view them. We requested a statement explaining why we could not have access to the minutes. In the statement we were advised as soon as the minutes were available we would be contacted. The minutes were being archived at the courthouse. Twenty Five days went by and minutes were requested again. The next morning the minutes were retrieved from the courthouse and made available to us. Later we found that the minutes were accessible all along.
The agenda to take us to court was being pushed forward and options for communication were running out. Moving our gazebo under these circumstances and others not mentioned would only encourage the mistreatment of others:
*No contact was made with us during the two months we worked on our gazebo.
*We were given conflicting reasons for removing our gazebo.
*Our gazebo was called an accessory building so we would be required to move it 40 feet. (Codes recently adopted to change the setback to 25 feet are already in the code book. These codes should have been applied in our situation.
*We were never red tagged or asked to stop construction but accused of not stopping.
*Anxious to press charges an appeal was overlooked.
*We did not get to appeal a decision, but were denied a variance.
*We were told to get a building permit, denied, and then charged twice for not obtaining one.
*Charges were dropped twice. (Reasons unknown).
*Crucial information we shared was not passed on or believed.
*Salt Lake City attorneys were hired and building permit was still an issue even though Orangeville City had announced they were adopting these codes.
*Orangeville City attorneys advised them not to speak with us due to litigation making it impossible for us to verify where they would allow the gazebo to be moved.
*The requirement for us to get a permit was illegal as the city was not in compliance with IRC codes.
*Although we graciously shared this information the city council was still influenced to take us to court.
*Attempts to meet with us were encouraged by one city council member and by sabotaged by another who is not longer on the council
*We were denied public minutes while trying to answer allegations.
*To date, our mayor made no attempt to ever speak with us.
We have seen how a small handful of people can manipulate city government, policies and codes and sabotage citizens. We do not hold our whole city government completely responsible for a few, but encourage our city officials to acknowledge this problem and take action. Over the past few months we have continued to see the strictest use of the codes, rather than using the codes to favor the citizens. We know there are many citizens who share our concerns. In recent Letters to the Editor we have shared situations and frustrations from citizens in Orangeville. Because these citizens have stood up for themselves, issues have often been resolved in their favor.
Standing up for what is right often comes with sacrifice and many are faced with this challenge. Being taken to court seems extreme in Orangeville, but could become more and more common as the process involved is becoming common treatment of citizens. Because of a few who were determined to take us to court as they so threatened, they demonstrate their motivation better than anyone. We believe we are a symptom of a problem that needs to be addressed. Our goal is to help others avoid going through what we have.
We appreciate the city officials, employees, and citizen volunteers, who are positively motivated to serve the citizens of Orangeville.
Life is too short to hold grudges or harbor hurt feelings. Life is also too short not to work towards change. We encourage involvement and are grateful for a free country, democracy, the right to stand up for what we feel is right, advocate for others, and the right to vote.
Utah State Code 10-9-703 Powers and Duties:
(1) The board of adjustment shall hear and decide:
(a) Appeals from zoning decisions applying the zoning ordinance;
(b) Special exceptions to the terms of the zoning ordinance.
(c) Variances from the terms zoning ordinance.
(2) The board may make determinations regarding the existence, expansion, or modification of nonconforming uses.
Scenario:
You build a fence that does not meet with zoning ordinances as it is a few inches too high. A shorter fence would defeat the purpose for having a fence. You have neighbors and others in town with fences that do not meet the strictness of the codes. You get red-tagged.
Planning and zoning administrator sends you to the board of adjustments if you want to appeal his decision.
Instead of the board listening to your appeal on the zoning decision (a) or considering special exceptions (b), you are in front of a variance committee.
You are required to fill out an application for a variance. A variance has absolutely nothing to do with your situation and does not apply to the reason you were sent to the board in the first place. You pay $25 to participate.
The board denies you a variance because you do not fit any of the requirements. You do not get to appeal the decision of the zoning administrator because your situation does not fall under conditions that meet variances. The variance you could not ask for will be denied. If you want to appeal this decision, you can file through district court.
You may wonder what happened to your chance to appeal the decision of the zoning administrator who sent you to this process in the first place. You have not been given an option to appeal this decision. This is a “Catch 22,” a map for failure.
You have not been given a chance to communicate with anyone but the zoning administrator, who enforces the codes and has red-tagged you and sent you to the board of adjustments where he knows you will only be given an option to request a variance that you cannot legally ask for and does not apply to you.
Recently two citizens attending the same board of adjustments meeting realized they were in the wrong place as variances did not apply to them. These citizens do not lack education about this process, they were sent there if they wanted to appeal the decision of the Zoning Administrator. They wet where they were sent to find out they could not accomplish what they were sent there for. Who lacks in the education process? No amount of clarity that tries to inform citizens about variances will ever clear up this issue as long as the zoning administrator is sending citizens to this board to appeal his decisions and the board of adjustments fails to recognize they can hear these appeals and alter these decisions by allowing for special exceptions that are not so limited.
These citizens were sent back to planning and zoning to go through a process of trying to change ordinances. You would think looking into special exceptions would be the answer.
This is an interesting (Catch 22) situation because planning and zoning recently started requiring citizens to fill out an application to come before them. The problem here is they also state, “That if someone has already spoke with the zoning administrator they do not have any reason to go to planning and zoning.” Again, we still have the zoning administrator sending people to the board of adjustments to ask for a variance. He makes all the decisions on his own rather than in conjunction with planning and zoning. Most likely he will send them on to the board of adjustments where they will find the very name of the committee a huge disappointment.
Who has the power to hear appeals or grant special exceptions to the zoning ordinances? The board of adjustments claim they do not have this power. (Indeed, it may be that someone has forgot to give it to them by addressing this problem in the Orangeville City Code Book).
Apparently the planning and zoning can give a few special exceptions, but none that apply. The same with the board of adjustments.
Adjustment means to: adapt; put in working order; to accommodate; arrangement; settlement; adaptation.
In Orangeville, we are not allowed special exceptions and those allowed are so limited that they do not apply to the needs of the citizens of Orangeville. Other special exceptions that have been allowed recently are being denied because they don’t fit with the limited qualifications that allow for special exceptions. These exceptions have been granted in special meetings, but the exceptions given still go against the exceptions allowed in the code.
The code needs to be changed to allow for some board to hear appeals of zoning decisions to allow for communication and fairness.
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